The district court, in a three-page analysis — mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case — concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that

the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and

Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power[s]" (a term that could encompass foreign nongovernmental organizations as well as foreign governments), as oppose to activities of domestic organizations (the matter that the Keith Court stressed was at issue in that case).

For more on these two arguments, see Orin's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):

On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument — and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

The court also holds that the program violates the First Amendment, because it deters some people from communicating with the plaintiffs, given the risk that the communications will be overheard. Note, though, that this judgment rests entirely on the court's earlier conclusion (which is in my view not fully defended) that the eavesdropping violates the Fourth Amendment.

All publicly known eavesdropping -- or for that matter the prospect of possible searches of tangible papers -- poses the risk that some communications will be deterred. Eavesdropping conducted pursuant to properly issued warrants (ones that can be based on mere probable cause, rather than any solid proof that the eavesdropping will yield incriminating evidence) poses that risk. Eavesdropping conducted purusant to properly issued FISA orders, which don't even require probable cause that the speech collected will be incriminating (only probable cause that the targeted person is an agent of a foreign power), poses that risk. Constitutionally permissible border searches of papers pose that risk.

But there's no need to show in any of these cases (as the court in this case suggested) that the search is based on "a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." At most, the Fourth Amendment rules (which generally require only a warrant and probable cause and not a compelling interest and narrow tailoring, sometimes don't even require a warrant, and sometimes don't even require either a warrant or probable cause) are made somewhat more demanding by the First Amendment (see, e.g., Lo-Ji Sales, Inc. v. New York), though even that doctrine is quite limited. And in a case like this one, I know of no Supreme Court cases suggesting that a search that's valid under the standard Fourth Amendment rules would violate the First Amendment.

So the court's First Amendment conclusion, if it's correct, would be correct only if the court is right to say that the program violates the Fourth Amendment, and that a violation of the Fourth Amendment in such a situation yields a violation of the First Amendment. Perhaps the court is correct here, but it's important to recognize that the First Amendment holding is derivative of the Fourth Amendment holding, rather than being a fully independent basis for the decision.

The NSA Eavesdropping Opinion, the FISA Claims, and the Separation of Powers / Inherent Power Claims:

As Orin pointed out last December, the strongest argument -- quite possibly an ultimately correct argument -- against the NSA program is that it violates not the Constitution, but the Foreign Intelligence Surveillance Act, which bans "engag[ing] in electronic surveillance under color of law except as authorized by statute." The government has responded that (1) the Authorization for the Use of Military Force implicitly authorizes certain warrantless surveillance, and that (2) the President in any case has inherent constitutional powers, powers that Congress can't limit (and that the Fourth Amendment doesn't limit, for reasons noted below, to engage in national security surveillance). Orin's post (a must-read) suggests that the government's responses are on balance not persuasive, and that the program probably violates FISA.

So it's possible that the court got the result right -- in my view, not on the First and Fourth Arguments, but on the FISA point. Nonetheless, if the court's FISA analysis is mistaken, then the other arguments (the separation of powers and the inherent power arguments) don't provide any independent basis for its decision. The separation of powers point rests on the assertion that "The President, undisputedly, has violated the provisions of FISA"; and the inherent power argument, which is long on rhetoric but short on detailed analysis, rests on the assertion that "Not only FISA, but the Constitution itself has been violated by the [program]." If the First and Fourth Amendment analyses are mistaken (as I think they are), and if the FISA analysis is mistaken, then the other analyses provide no independent foundation for striking down the program.

So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.

Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence.

Second, the court does not really deal with a number of very good arguments for why the NSA program might be within the Fourth Amendment. The best argument for the court's position is that if the program reaches United States persons who are not agents of a foreign power, like the plaintiffs, it may be unconstitutional. But the court does not make that distinction.

Finally, the court seems to be very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision, which is probably the most relevant decision, resting its arguments primarily on the 2004 Hamdi decision. It also seems confused about what constitutes a violation of separation of powers. If the AUMF did in fact amend FISA, the government has a very strong argument that it falls into category one -- maximum executive power -- and not category three -- minimum executive power -- under the Youngstown analysis. The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty and I, among others, have elaborated. But I must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program.

If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's claim that FISA is unconstitutional is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that reheases the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.

The Fourth Amendment and the NSA Domestic Surveillance Opinion:
I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment.

Here's the part that comes closest to being an analysis section:

[The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens. In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term. All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment. The President of the United States is himself created by that same Constitution.

I confess that this has me scratching my head. Let's take it bit by bit:

[The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.

It's true that the Fourth Amendment requires reasonable searches. But Fourth Amendment reasonableness is satisfied by a warrant or an exception to the warrant requirement, and there are several possible exceptions to the warrant requirement that may apply. Whether and how they may or may not apply depends on the facts of the surveillance, which are currently unknown.

Also, identifying a reasonable expectation of privacy in communications is really quite complicated given new communications technologies; for example, courts have held that there is no REP in transactional information and cordless phone calls, and individuals with no voluntary contact with the U.S. presumably have no Fourth Amendment rights at all. We'd need to know the details of the surveillance to know this, but we don't know those details.

In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile.

What does this have to do with whether the program violates the Fourth Amendment?

The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution.

It's hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that's the issue before the court, and my sense is that we really don't know enough to answer it without knowing the facts. And while it's true that the office of the Presidency was created by the Constitution, and the Fourth Amendment is a part of that Constitution, it's not clear how this relates to the Fourth Amendment issue. (Oh, and on an exceedingly minor point, I think that's four years, not five.)

I can come up with explanations for why a district court judge inclined to rule against the program would put out an opinion that isn't quite ready for prime time. For example, Senator Specter's bill would take these issues away from the district court, so the choice might be to speak now or never. But at least based on the court's Fourth Amendment analysis, I suspect this opinion is important more for its political impact and its triggering of appellate review than for any analysis in the opinion itself.

In any event, on to the Sixth Circuit (which, at least this story suggests, may have issued a stay of the injunction already).

The district court held that the plaintiffs had standing to challenge the warrantless NSA surveillance program. The plaintiffs are individuals and associations whose members "conducted regular international and telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship." They asserted a "well founded belief" that they had been subjected to warrantless surveillance and that the existence of the program had actually "chilled" their communications with persons overseas. None of the plaintiffs alleged, however, that they had actually been surveilled under the NSA program.

The Supreme Court has held that, to establish standing, the plaintiffs must allege an injury that is concrete and particularized, not hypothetical and conjectural. Cases in the past decade or so have shown that this doctrine is quite flexible, allowing the Court to sidestep difficult or particularly sensitive constitutional questions where there's even a doubt about whether the standing threshold has been met. An example of this technical maneuver to avoid consideration of a thorny constitutional issue is the Supreme Court's recent decision to reject a non-custodial atheist father's claim that it is unconstitutional for public schools to lead children in reciting the phrase "under God" in the Pledge of Allegiance. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) (dismissing claim on the ground that the father lacked standing). Justice Stevens's majority opinion declared: "The command to guard zealously and exercise rarely our power to make constitutional pro-nouncements requires strictest adherence when matters of great national significance are at stake." Id. at 11 (emphasis added).

The district court nevertheless thought the plaintiffs had met this standard because the "chilling" effect from the very existence of the program was clear. The court then cited cases in which plaintiffs had adequately alleged chilling and other effects from the operation of federal laws. The problem is that, in each case, there was no question that the plaintiffs had actually been subjected to the regulation in question, not simply whether they might be. Once the application was clear, a chilling effect surely suffices as a sufficiently concrete injury. But the predicate is not clearly met in this case.

I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional. I have written so here. But I am less sure this is an issue courts should review, and even less sure that this case is one they should review.

So while the much sexier questions of executive power, the First Amendment, and the Fourth Amendment, will no doubt occupy many of us over the coming months (as they already have), I'd be willing to bet that at either the appellate court or the Supreme Court the suit will be dismissed for lack of standing.

(Meanwhile, with all this going on, ABC led its evening news with the latest from the Jon Benet Ramsey case.)

If you're a judge, your first responsibility is of course to reach the conclusion that you think is legally right, and to explain it using those arguments that you think are most sound. But once you have that figured out, presumably you'd want to maximize your chances of being affirmed — since by hypothesis your approach is the correct one, and you'd like to see it kept rather than being overruled. And that must be doubly so when you not only think the result you reached is right, but are passionate about it.

You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it's likely that the decision will be appealed. In some cases, you might conclude that the higher court judges just won't care what you write, because they'll make up their minds based on their own considerations. Yet even in ideologically polarizing cases, there are usually at least some judges who may be swayed by persuasive argument, especially from a fellow federal judge.

By that standard, the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Jeff Rosen once faulted Justice Blackmun for a judicial approach that was so emotional that it undermined his ability to implement the very ideas that he passionately believed; his "tendency to let his heart get the better of his head," Rosen argued, would "deprive[] him of lasting influence." (Others have argued that Justice Scalia's pugnacity might have a similar effect.) It seems to me that by writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.

I am quite skeptical whether the President is inherently exempt from statutory restrictions (especially procedural ones) on wiretapping. But the question I want to raise here is about the original meaning of the 4th Amendment.

(BTW, I don't necessarily believe that originalism is the only legitimate form of interpretative analysis, but I do think that it is the place to start, which is why both originalists and nonoriginalists usually start there.)

Being neither an expert in Constitutional law nor an expert in criminal procedure, I wanted to ask our readers and my fellow Volokh Conspirators (particularly Orin, Eugene, Dale, and Randy, who are experts in some or all of these issues) about what research has been done into the original meaning of the 4th Amendment. On its face, it doesn't seem to be a general provision protecting people's privacy from government investigation without a warrant.

The 4th Amendment's text seems much more limited:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

To a naive reader such as myself, it would seem to contemplate looking at people's writings, homes, and private papers, in other words, their physical property--as well as seizing their body by arrest. For seizing your physical property or your body or breaking into your home to search, a warrant and probable cause is recognized as legally necessary.

Consider that spies were commonly used in the 18th century, at least in military actions. Presumably criminal informers were as well. The 4th Amendment doesn't say that you have to have a warrant to eavesdrop on people's conversations.

Is there any evidence in discussions at the time of drafting it, voting on it, or ratifying it that the 4th Amendment was intended to require warrants when someone wanted to overhear another person talking--which is, after all, a semi-public act that someone can hear without arresting the suspect, physically breaking into his home, or seizing his private papers or other tangible personal property?

Or is there any evidence that the words of the 4th Amendment would mean at the time that eavesdropping and spying were illegal without a warrant? If not, then conversation may not have been intended to be covered.

If so, that would not end the analysis. The argument might arise whether the technological changes in the government's ability to eavesdrop have fundamentally changed the analysis such that eavesdropping was not covered then but must be covered now. Or one might argue that the federal government, being one of limited powers, did not have the power to eavesdrop without a warrant, even if the 4th Amendment does not prevent it.

Or, of course, tradition or US precedent may be thought to mandate something other than the original understanding.

I repeat that I am not claiming that I know what the original meaning of the 4th Amendment was, only that a facial reading gives me some doubt whether surveillance outside of one's home or eavesdropping were intended to require a warrant, and I'm hoping that some expert can tell me what the research tells us on this question.

The Post has hardly been a solid defender of the NSA eavesdropping program, but it nonetheless criticizes the decision:

[T]he decision ... is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.

Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. [For details, see the editorial itself. -EV] ...

The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality....

Orin points me to today's editorial, which says (among other things) that "The ruling eviscerated the absurd notion on which the administration's arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan," and refers to the "careful, thoroughly grounded opinion." Whatever the merits of the Times' substantive arguments, it seems to me hard to justify calling the opinion "careful" and "thoroughly grounded," for the reasons various people (including Jack Balkin, Orin, and me, see the posts below) have noted.

UPDATE: Commenter Kazinski rightly points out another problem in the Times editorial. The editorial says:

The ruling eviscerated the absurd notion on which the administration's arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.

Is that quite a fair way of characterizing the AUMF, which hardly limits itself to Afghanistan, but instead says the following?

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it [r]esolved by the Senate and House of Representatives of the United States of America in Congress assembled, ...

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons....

While I'm on the subject of editorials about the NSA eavesdropping case, let me note the New York Sun's, which notes that "The administration plans to appeal, and, while we hope it will prevail, it's clear the hard-left is going to play the courts for all it's worth."

It seems to me that the proposition that Congressional judgments about the proper scope of surveillance (even surveillance aimed at catching foreign terrorists) prevail over Presidential judgments is hardly a "hard-left" view. If the Foreign Intelligence Surveillance Act prohibits the NSA program (my reading is that it does), the Authorization for the Use of Military Force doesn't implicitly authorize what FISA forbids (and it's at least quite plausible to say that it doesn't implicitly authorize it), and the Congress has the constitutional power to constrain the President this way (and again it's at least quite plausible to say that it has such a power), then the NSA program is illegal. And even if the program is nonetheless valuable for national security, there are perfectly sensible non-hard-left arguments for concluding that the rule of law should trump even national security concerns (especially if one believes, as I do, that the constraints on the program are statutory and can thus be removed, if necessary, simply by getting Congress to change the law).

Again, one can certainly argue that the program is legal. But it seems to me a mistake to derogate many people's legitimate concerns about the program by connecting them to the "hard-left." Doubtless parts of the hard left (however you define such a group) are interested in sinking this program and many others -- but many people who criticize this program are most certainly not on the hard left.

Should We Care About The Reasoning In Judge Taylor's Opinion? :Glenn Greenwald has a post responding to the Washington Post's editorial on Judge Taylor's NSA opinion, and in particular criticizing the Post (and many others, including Eugene) for criticizing its reasoning. He writes:

What really matters, says the Post in its unbelievably petty editorial, is not the profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law and has been exercising that power aggressively and enthusiastically in numerous ways over five years. No, that is merely a fascinating intellectual puzzle, something for super-smart experts to resolve with great civility and high-minded, complex discussions as they ponder what the Post calls the "complicated, difficult issues" raised by the administration's lawlessness. To the Post, what really matters here is how impressed law professors are with the complexity and nuance in Judge Taylor's written decision. Condescendingly scoffing at the judicial quality of her opinion is of infinitely greater importance than objecting to the growing extremism and lawlessness to which our country has been subjected. * * * In the scheme of the profound issues our country faces, obsessing about the inartfulness of this judicial opinion is not unlike those who use a laughably grave tone to write articles about fights between Daily Kos diarists or the latest blogger "scandal" while ignoring our national media's grotesque failure to scrutinize meaningfully our government's conduct and claims — particularly on matters of war and peace or threats to constitutional liberties. There is nothing commendable or impressive about always being restrained and muddled and ambivalent in one's tone and views. It is not a sign of intellectual prowess to be open-minded to frivolous claims or corrupt and dangerous behavior. And when the claims are particularly frivolous, and when the corruption and dangers reach a certain level of severity, self-important ambivalence — hospitality to extremist ideas and systematic government law-breaking — is actually irresponsible, reckless, and morally and intellectually bankrupt.

Two responses. First, the issues raised by the NSA domestic surveillance program are not easy. Granted, I think that the Administration's published legal defense of the program is weak. But that doesn't mean that the program is illegal; the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don't know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don't know enough of the facts to know if the program violates the Fourth Amendment. I can recite the arguments, but without the facts I can't tell.) And the legality of the NSA domestic surveillance program was a part of Judge Taylor's opinion, but only a part, as most of the opinion was on procedural issues such as the state secrets privilege and standing. Greenwald is right that "it is not a sign of intellectual prowess to be open-minded to frivolous claims." But it's also not particularly helpful to be close-minded to difficult ones.

Second, isn't the gist of Greenwald's argument somewhat similar to the arguments that the President's most zealous supporters have been making all along? In their case, of course, they have made such claims in response to criticisms of the Administration's legal defense of the NSA program, rather than in response to criticisms of Judge Taylor's opinion striking it down. But you've seen the argument many times, including in many VC comment threads: Rather than dwell on the "fascinating intellectual puzzle" of whether the NSA program is legal, we should focus on the really important question of defending the country against terrorists. In other words, stop quibbling over little legal issues and get back to the big picture. To be fair, this is often a very legitimate argument; legal niceties aren't everything. But it's not obvious to me why we would reject this advice when analyzing the DOJ's defense of the program but not when analyzing Judge Taylor's opinion striking it down.

UPDATE: After drafting this post, I note that Greenwald has an update further explaining his point, in which he suggests (I think) that his point is that even if the criticisms of Judge Taylor's opinion are fair on the merits, it is somehow inappropriate. In his example, Greenwald suggests that criticizing Taylor's opinion is like seeing an assault and complaining about the unpleasantness of a victim's cry rather than the assault itself. While I appreciate his willingness to attempt to clarify the point, I'm not entirely sure how that clarifies the post. And I don't find the analogy persuasive.

In a very solid article by Adam Liptak in tomorrow's New York Times, several bloggers comment on the weakness of the arguments in the recent NSA wiretapping case. Among those`quoted are Eugene and Orin (tip to Althouse, who notes how much the story conflicts with Friday's praise for the decision's reasoning on the Times editorial page).